State v. Burke

• Decision Date: 08 October 2015
• Docket Number: No. 1 CA–CR 14–0438.,1 CA–CR 14–0438.
• Citation: 360 P.3d 118,238 Ariz. 322,723 Ariz. Adv. Rep. 30
• Parties: STATE of Arizona, Appellee, v. Richard Taylor BURKE, Sr., Appellant.
• Court: Arizona Court of Appeals

238 Ariz. 322

360 P.3d 118

723 Ariz. Adv. Rep. 30

STATE of Arizona, Appellee,

v.Richard Taylor BURKE, Sr., Appellant.

No. 1 CA–CR 14–0438.

Court of Appeals of Arizona, Division 1.

Oct. 8, 2015.

Scottsdale City Prosecutor's Office By Kenneth M. Flint, Scottsdale, Counsel for Appellee.

Henze Cook Murphy, PLLC By Tom Henze, Janey Henze Cook, Kiersten A. Murphy, Phoenix, Counsel for Appellant.

OPINION

KESSLER, Judge:

¶ 1 Richard Taylor Burke, Sr. (“Burke”) appeals from a judgment of the Maricopa County Superior Court affirming his conviction for wilfully refusing or failing to comply with a lawful order or direction of a police officer in violation of Arizona Revised Statutes (“A.R.S.”) section 28–622(A)(2012).¹On appeal, Burke argues that A.R.S. § 28–622(A)is unconstitutionally vague on its face. Because the statute is not unconstitutionally vague on its face, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 This case arises out of a routine traffic stop. After Burke allegedly failed to stop at a stop sign, a police officer pulled Burke over, asked him for his license and registration, and directed him not to move his vehicle. Burke disobeyed the instructions, drove his vehicle to the side of the roadway, called 911, and eventually exited his vehicle after additional officers arrived on the scene. Burke was arrested after exiting his vehicle. After a bench trial in Scottsdale Municipal Court, Burke was convicted of wilfully refusing or failing to comply with a lawful order or direction of a police officer. SeeA.R.S. § 28–622(A). Burke appealed to the Maricopa County Superior Court arguing, among other things, the statute is unconstitutionally vague and overbroad. After briefing and hearing oral argument, the superior court affirmed.

¶ 3 Burke timely appealed. Our jurisdiction is limited to reviewing the facial validity of A.R.S. § 28–622(A). SeeA.R.S. § 22–375(A)(Supp. 2015) (“An appeal may be taken ... from a final judgment of the superior court in an action appealed from a justice of the peace or municipal court, if the action involves the validity of a ... statute.”); see also State v. Kaiser,204 Ariz. 514, 516–17, ¶ 4, 65 P.3d 463, 465–66 (App.2003)(“Because this matter originated in municipal court, our jurisdiction is limited to a review of the facial validity of the [statute].”); State v. Irving,165 Ariz. 219, 221, 797 P.2d 1237, 1239 (App.1990)(“[A.R.S. § 22–375] limit[s] this court's review to the facial validity of [a challenged statute]. Its application to the specific facts of [a] case is beyond our review.”). In an appeal from a limited jurisdiction court, our jurisdiction is limited to facial challenges in this context, and if we determine that the statute is facially valid, we will not address whether it is unconstitutional as applied. State v. McMahon,201 Ariz. 548, 550, ¶ 3, 38 P.3d 1213, 1215 (App.2002); see also Hancock v. State,31 Ariz. 389, 396–97, 254 P. 225, 227–28 (1927)(holding that review was limited to facial constitutional challenge to a statute on appeal from superior court review of a justice court decision).

STANDARD OF REVIEW

¶ 4 We review the constitutionality of statutes de novo. Thiele v. City of Phoenix,232 Ariz. 40, 42, ¶ 11, 301 P.3d 206, 208 (App.2013). “In reviewing a challenge to a statute, we presume that the statute is constitutional and must construe it, if possible, to give it a constitutional meaning.” McMahon,201 Ariz. at 550, ¶ 5, 38 P.3d at 1215; see also Graville v. Dodge,195 Ariz. 119, 123, ¶ 17, 985 P.2d 604, 608 (App.1999)( “We ... will not declare an act of the legislature unconstitutional unless convinced beyond a reasonable doubt that it conflicts with the federal or state constitutions.”). “It is the person challenging the enactment who bears the burden of establishing the contrary proposition.” Kaiser,204 Ariz. at 517, ¶ 8, 65 P.3d at 466. As applicable here, “to successfully challenge the facial validity of a statute, the challenging party must demonstrate no circumstances exist under which the challenged statute would be found valid.” Lisa K. v. Ariz. Dep't of Econ. Sec.,230 Ariz. 173, 177, ¶ 8, 281 P.3d 1041, 1045 (App.2012).²

DISCUSSION

I. STANDING

¶ 5 Burke argues that A.R.S. § 28–622(A)is unconstitutionally vague on its face, and as a result, it cannot properly provide a basis for a criminal conviction. As asserted by the State, before we can determine whether the statute is facially valid, we must first address whether Burke has standing to challenge the constitutionality of the statute.

See Kaiser,204 Ariz. at 517, ¶ 5, 65 P.3d at 466. “Ordinarily, a defendant may not challenge a statute as being impermissibly vague or overbroad where the statute has given him fair notice of the criminality of his own conduct, even though the statute may be unconstitutional when applied to someone else.” McMahon,201 Ariz. at 550, ¶ 6, 38 P.3d at 1215. However, as we made clear in McMahon,we will not apply this standing requirement when the defendant is challenging the statute on its face, rather than as applied to him. Id.In this case, Burke can and has only challenged the statute as being unconstitutionally vague on its face, that is, he argues it is incapable of anyvalid application based on an alleged lack of limiting language, or more specifically, a temporal descriptor. Because Burke challenges the statute as vague and overbroad in all circumstances, he has standing to press this appeal. See id.

II. VAGUENESS

¶ 6 “The due process clause of the fourteenth amendment does not permit the state to deprive a person of liberty for violating a statute whose terms are ‘so vague, indefinite and uncertain’ that their meaning cannot be reasonably ascertained.” State v. Western,168 Ariz. 169, 171, 812 P.2d 987, 989 (1991)(citation omitted). “A statute is unconstitutionally vague if it does not give persons of ordinary intelligence a reasonable opportunity to learn what it prohibits and does not provide explicit instructions for those who will apply it.” McMahon,201 Ariz. at 551, ¶ 7, 38 P.3d at 1216. “Due process does not require, however, that a statute be drafted with absolute precision. ‘It requires only that the language of a statute convey a definite warning of the proscribed conduct.’ ” Id.at ¶ 8 (internal citations omitted); see Kaiser,204 Ariz. at 517, ¶ 9, 65 P.3d at 466(“[T]he requirement of a ‘fair and definite warning’ does not necessitate ‘perfect notice or absolute precision’ of language.”) (quoting State v. Singer,190 Ariz. 48, 50, 945 P.2d 359, 361 (App.1997)). In applying these principles to a facial attack on a statute, Burke must show that under no set of circumstances can the statute be constitutionally valid. See Lisa K.,230 Ariz. at 177, ¶ 8, 281 P.3d at 1045.

A. SUFFICIENT DEFINITENESS OF TERMS

1. WILFULLY FAIL OR REFUSE TO COMPLY

¶ 7 Section 28–622(A)provides that “[a] person shall not wilfully fail or refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic.” Burke first maintains that A.R.S. § 28–622(A)is unconstitutionally vague because the statute's mens rea,“wilfully,” lacks sufficient definiteness. Burke relies on State v. Cox,which states, “Arizona criminal law has recognized only four culpable mental states: intentionally, knowingly, recklessly, and with criminal negligence.” 217 Ariz. 353, 356, ¶ 16, 174 P.3d 265, 268 (2007); see alsoA.R.S. § 13–105(10)(Supp. 2015) (defining four culpable mental states). Based on this premise, Burke seems to claim that the use of any other term to describe the mens reaautomatically renders the statute void for vagueness. We disagree.

¶ 8 Burke's assertion that the term “wilfully” is ill-defined is without merit. First, the Arizona Legislature defined the term “wilfully” in A.R.S. § 1–215(41)(Supp. 2015) as meaning, “with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists.” Second, the Legislature used identical language in A.R.S. § 13–105(10)(b)to define “knowingly.”³Although the statute governing failure to comply with a police officer is found in Title 28, seeA.R.S. § 28–622, the statutory definition of knowingly applies to the construction of offenses found outside of Title 13. SeeA.R.S. § 13–102(D)(2010) (“Except as otherwise expressly provided, or unless the context otherwise requires, the provisions of this title shall govern the construction of and punishment for any offense defined outside this title.”). Finally, although dicta, this Court has previously explained that “[t]he definition of ‘wilfully’ in A.R.S. § 1–215[ (41) ] is equivalent to the definition of ‘knowingly’ given in A.R.S. § 13–105[ (10)(b) ].” State v. Gendron,166 Ariz. 562, 565, 804 P.2d 95, 98 (App.1990), vacated in part on other grounds,168 Ariz. 153, 812 P.2d 626 (1991); see generally Lamb Excavation, Inc. v. Chase Manhattan Mortg. Corp.,208 Ariz. 478, 482, ¶ 15, 95 P.3d 542, 546 (App.2004)(“[W]e find [dicta] persuasive when viewed in combination with the remainder of the court's analysis.”), declined to follow on other grounds by Sourcecorp, Inc. v. Norcutt,229 Ariz. 270, 274 P.3d 1204 (2012).

¶ 9 Burke also argues that the phrase “wilfully fail” is a clear contradiction in terms and encompasses acts of inevitable necessity. Again, Burke's argument hinges on the idea that the statute lacks a mens rearequirement. Contrary to Burke's assertion, the statute does not punish individuals for a mere failure to obey; instead, it requires a wilful,or knowingrefusal or failure to comply, which is tantamount to an affirmative act of rejection. See Kaiser,204 Ariz. at 518, ¶ 11, 65 P.3d at 467(“To refuse an order is an affirmative act of rejection, not a bare failure to obey but a knowingand deliberate decision to not obey.” (emphasis added)). Accordingly, the terms “wilful” and “wilfully fail,” as used in the statute, are not so...